Vague, open-ended medical leave denied

published in McAfee & Taft EmployerLINC | August 9, 2017

By Charlie Plumb

The Americans with Disabilities Act requires employers to consider a leave of absence for an employee due to a medical condition as a form of accommodation. However, that requirement is not without limitations. A recent appeals court decision that applies to Oklahoma employers demonstrates that an employer may not be required to provide leave to an employee that is uncertain as to frequency and duration – particularly when that leave is requested by a temporary employee.

Temporary assignment with GE Solutions

Kristin Punt worked for Kelly Services, a company that provides temporary staffing services to employers. Under the terms of her employment with Kelly Services, Punt’s work assignments depended entirely on the needs of the staffing agency’s customers and could be cancelled at any time by either Kelly Services or the customer. After she completed an assignment, Punt was required to advise Kelly Services of her availability for a new assignment. Punt specifically acknowledged that she was “responsible for maintaining regular contact with Kelly [Services] and failure to do so will indicate I have either voluntarily quit or am not actively seeking work.”

GE Controls Solutions was a customer of Kelly Services. When its receptionist retired, GE Controls asked Kelly Services to assign a temporary employee to fill the vacant position. Because she had filled in before as its receptionist, Punt was a logical choice.  In October, the staffing agency assigned Punt to temporarily work at GE Controls, where she was required to work 40 hours per week, 7:30am to 4:30pm each weekday.

Before beginning her assignment, the results of a screening mammogram showed a suspicious mass. After beginning work at GE Controls, a breast biopsy determined Punt had breast cancer. According to Punt, she informed a number of GE Controls and Kelly Services employees of her cancer diagnosis and of her family’s history of breast cancer.

During her six-week assignment at GE Controls, Punt never worked a 40-hour workweek. Her absences included two absences on holidays, three absences for medical appointments, and one unexplained absence.

Additionally, Punt was frequently late to work and left early on a number of occasions. According to Punt, some of these instances were related to medical issues, while others were unexplained. When she was not at her assignment, another temporary employee who was assisting GE Controls’ general manager was required to perform Punt’s duties in addition to her own.

Punted after cancer diagnosis

In early December, Punt missed work as a result of an MRI appointment, and she exchanged a series of emails with Erin Wilgus, the Kelly Services employee who coordinated Punt’s assignment with GE Controls. When Wilgus tried to ascertain when and whether she could work, Punt “lied about what had actually happened with the MRI” and told Wilgus she needed more time off for tests and treatment. Punt told Wilgus she could “not come to work this week at all” and would need more time off for “some appointments and tests” and for “five times of radiation.”  At about the same time, GE Controls’ general manager and HR director contacted Kelly Services to cancel Punt’s assignment. The general manager told Wilgus they “needed an employee that’s going to be able to show up and fulfill the needs of the position.”

Punt never contacted Kelly Services to request more work. In February, the staffing agency contacted Punt to offer her an assignment, but she turned it down. After that, Punt never contacted Kelly Services to say she was available and wanted a job assignment.

Uncertain, open-ended request for leave unreasonable

Punt sued both Kelly Services and GE Controls, claiming they had violated the Americans with Disabilities Act by failing to reasonably accommodate her medical condition – in this case, her need for leave as a result of her cancer diagnosis and treatment. Because her open-ended request for leave was not “plausibly reasonable,” the court found in favor of Kelly Services and GE Controls and dismissed Punt’s case.

Here’s why: Punt’s request for an accommodation – i.e., leave – was very vague. She could not tell Kelly Services how much work she was going to miss or the duration of her need for additional leave. Even more so than regular employees, “physical presence at the workplace was the most essential function of [Punt’s] job,” so a request of such an uncertain leave was unreasonable.

Nor could she complain about how Kelly Services treated her after the GE Controls assignment ended. It was clearly Punt’s responsibility to contact the staffing agency if she wanted another assignment, and it was undisputed she failed to do so.

… and the message is …..

Requests by employees for leave due to medical conditions should be considered a request for accommodation under the ADA. That can be the case even when employees have exhausted all their leave rights. When an employee raises the need for leave, the employer may require medical information confirming the necessity of the absence and should ask the employee and their healthcare professional about the nature and anticipated duration of the absence. In some cases, a request for a vague, open-ended or lengthy leave may be denied when unreasonable.

  • Punt v. Kelly Services and GE Controls Solution, No. 16-1026 (10th Cir. 7/6/17)

Learn more about the Americans with Disabilities Act

In this presentation for JurisIQ Learning Center, McAfee & Taft employment attorney Courtney Bru discusses the Americans with Disabilities Act, the rights it gives “qualified” employees, the responsibilities of employees to comply with specific requirements in order to protect those rights, the interactive process for accommodation, and the critical role supervisors play in satisfying the employer’s obligations under the Act.